reginald maximillian ntasima vs republic 2007 tzhc 262 16 july 2007

IN THE HIGH COURT OF TANZANIA AT TABORA APPELLATE JURISDICTION (Tabora Registry) (DC) CRIMINAL APPEAL NO. 121 OF 2004 ORIGINAL CRIMINAL CASE NO. 363 OF 1994 OF THE DISTRICT COURT OF TABORA DISTRICT AT TABORA Before: K.A. Majinge Esq. DISTRICT MAGISTRATE REGINALD MAXIMILLIAN @ NTASIMA.................APPELLANT (Original Accused) VERSUS THE REPUBLIC....................................... RESPONDENT (Original Prosecutor) JUDGMENT 23/5/07 & 16/7/2001 A.F. CHINGUWILE. J. In the District Court of Tabora Nasibu Liwali Kaombwe, MT 70348 PTE Reginald Maximilian Ntasima, MT 69834 PTE Cosmas Simon Mayunga @ Abegga MT 70028 Johannes Joseph Kabaka and Hassan Abdallah @ Mdogo stood charged with an offence of attempted robbery contrary to section 287 of the Penal Code Cap 16 R.E 2002. The appellant MT 70348 PTE Reginald Maximillian Ntasima who was the l second accused and MT 69834 PTE Cosmas Simon Mayunga @ Abegga who was the third accused were convicted and sentenced to thirty years imprisonment and twelve strokes. The fifth accused Hassan Abdallah @ Mdogo being a young person upon conviction he was sentenced to suffer twelve strokes. The first and fourth accused persons were acquitted. The appellant is now appealing against both conviction and sentence. He has submitted six grounds of appeal but basically he is challenging the evidence of visual identification. The appellant appeared in person and the Republic was represented by Mr. Rweyongeza learned State Attorney. The evidence before the trial court was that on 12th September, 1994 around 8 a.m. a group of bandits forced their way into the offices of Kipalapala TMP workshop situated at Tabora Municipality where they met PW1 Eletus d/o Shauritanga who was in her office and PW2 Efraim Mwinuka who was also in his office. A group which entered the office of PW1 started demanding money from her but when she replied that she had none, she was beaten and later on undressed. However she managed to flee from the bandits and went into hiding. Another group of bandits confronted PW2 who was in the company of PW6 Alex Kusofi and demanded money from him. They also beat him up. During trial PW1 testified that she was able to identify the first and third accused only .This was during examination in chief. It was only when she was being examined by the Court that she mentioned that on the second time she was able to identify the appellant. The only description she gave in respect of the appellant was the head injuries. On the other hand PW2 testified that on the fateful day while he was in his office with PW6, the appellant entered in his office claiming that he wanted to pay for the wedding cards which he had ordered three days before the incident. PW2 claimed that he was able to identify the appellant because he had visited their office three days before the incident in order to place an order for wedding cards. According to PW2 on that day he had presented himself as Richard Noel a businessman from Mwanza. PW6 who was in the same office stated that he was able to identify the bandit who had a gun only. The evidence adduced by this witness and other witnesses alleged that it is the third accused who had a gun. PW4 and PW5 also claimed to have identified the appellant after seeing him in the office of PW2. The Republic does not support conviction of the appellant for the reason that the appellant was not identified. The crux of this appeal is whether or not the appellant was properly identified . The only piece of evidence linking the appellant with the alleged offence is the testimonies of PW1 and PW2. I am of the view that their evidence must be treated with caution as in every case where the evidence of visual identification is relied upon it must be subjected to careful scrutiny. The objective is to see whether prevailing circumstances gave the witness opportunity to identify the accused correctly and to dispel every possibility of errors. Any person claiming to have identified an accused must also give a description of such accused. In this particular case the only description given by PW1 was that the appellant had head injuries. This was in respect of the identification parade. She does not say that she saw the appellant during the attempted robbery. Even in her examination in chief she did not mention the appellant. She only mentioned him while being examined by the court. I am of the view that PW1 did not identify the appellant. Otherwise she would have described him since day one. With regard to the evidence of PW2, he also alleges that he was able to identify the appellant because three days before the incident he had visited their office in order wedding cards. The identification testimony of PW2 contradicts the testimony of PW5 Herman Charles Mgolola who said that the face of the bandit who was in the office of PW2 was half hidden. In the same vein, I had expected PW6 who was in the office of PW2 when bandits appeared to corroborate the evidence of PW2 regarding the identity of the bandit. Another witness Lucas Paulo Mihayo Dohu, testified that there was commotion. It is not possible to identify a person when there is commotion. It is even more difficult to identify a person who is masked or half masked. I am of the view that there is a possibility of mistaken identity. The evidence of visual identification which was presented by the prosecution was contradictory. Prosecution witnesses who allegedly identified the appellant failed to give descriptive marks which link the appellant with perpetrators of the crime. Those who identified the appellant stated that they were able to do so because of the head injuries. It is very easy to pick a suspect who had visible marks standing among people who do not have visible marks. The appellant's conviction lacked legal basis as he was not identified by any witness. I therefore quash the conviction and sentence against the appellant. It is ordered that the appellant be released from jail forthwith unless lawfully held in connection with other matters. Judgment delivered in the presence of the appellant and Mr. Mulwambo State Attorney. t A.F. CHINGUWILE JUDGE 16/7/2007